PR 5343 
.L3G4 



The Law and Lawyers of 
Sir Walter Scott 

An Address Delivered to The Law Association 
of Philadelphia on March 6, 1906 



BY 



JOHN MARSHALL GEST 

of the Philadelphia 'Bar 



REPRINTED FROM THE 

AMERICAN LAW REGISTER 

Vol, s4— May and Ji^ne, too6 



Entered at Philadelphia Po»f-Office as second-class matter 
Copyright, 1906. by University ot Pennsylvania 




Qass_ 
Book. 



905 Lafayette Bldg. ,FMla. ,P&. 
June 26th, 1911. 

Robert ]). Dripps, Esq., 

West End Trust Pldg. ,Phila. ,P&, 
l^ dear I'Ir. Dripps:- 

I an very much pleased t o re- 
ceive your kind letter of the 22nd inst., and 

especially to hear you s&y tha.t the youne;er 
lawyers approve of my appointment. I hope 
that my new duties will bring me into closer 
contact 'vith you and the other members of the 
Junior Bar, and remain, with kindest personal 
regards, 

Yours very sincerely 



The Law and Lawyers of 
Sir Walter Scott 



An Address Delivered to The Law Association 
of Philadelphia on March 6, 1906 



BY 



JOHN MARSHALL (jJEST 

of the Philadelphia 'Bar 



"^l^oC; 









>) 
A 



THE LAW AND LAWYERS OF SIR 
WALTER SCOTT. 

" If it isna weel bobbit 
We'll bob it again." 

Walter Scott occupies a unique position in literature. 
His fame rests on his poems and novels, but he was also 
an historian, an antiquarian, a lawyer, a judge and a 
clerk of the highest Court in Scotland. No less a man 
than Emerson said that Scott, in the number and variety 
of his characters, approached Shakespeare, and Scott's 
flatterers were fond of making a closer comparison, but 
Scott, himself, with the natural modesty of a Scotchman, 
and the true self appreciation of a genius, said he was 
not fit to tie Shakespeare's brogues. He surely could 
not have written Hamlet, nor indeed could he have 
written Rabbi ben Ezra, nor yet. In Memoriam; but the 
Lady of the Lake, Marmion and the Lay of the Last Min- 
strel, with their smooth verse and charming ballads, 
have never been equalled. His novels are wonderful. 
No writer has produced so much that is so uniformly 
good. He hits the gold every time. Stevenson, no mean 
critic, called him, " out and away the king of the Roman- 
tics" and "the best of novelists," but maintains that 
Scott was wrong in his history, and picks the Lady of 
the Lake and Guy Manner ing to tatters, for their "bad 
English, bad style, and abominably bad narrative." 
Macaulay, on the other hand, was amazed by Scott's 
skilful use of history in his novels. "Scott has used," 
says Macaulay, "those fragments of truth which his- 
torians have scornfully thrown behind them, in a manner 
which may well excite their envy. He has constructed 
out of their gleanings works which, considered as his- 
tories, are scarcely less valuable than theirs." — yet 

An address delivered to the Law Association of Philadelphia, on 
March 6, 1906, by John Marshall Gest, Esq., of the Philadelphia bar 

1 



2 LAW AND LAWYERS OF SIR WALTER SCOTT. 

Macaulay adds with his usual snarl, "there are in Waver- 
ley and Marmion Scotticisms at which a London ap- 
prentice would laugh." This London apprentice doubt- 
less is elder brother to Macaulay's celebrated school 
boy; but Walter Scott, when Lockhart kindly pointed 
out some little slips, merely said, " I never learned gram- 
mar." De Quincey alleged that Scott utterly failed in 
depicting the English peasantry, nor would this be sur- 
prising for Scott never lived among them, and so, accord- 
ing to other critics he has not been absolutely correct 
in reproducing the colloquial Scotch of the Highlands. 

We can afford to pass over his slips in grammar, hi3 
errors in style, his occasional mistakes in history for the 
sake of the vivid humorous narrative and stirring verse. 
But vivid and stirring as they are, there is not a visible 
trace in the whole series that their author was conscious 
(though Stevenson says all Scots are thus conscious) 
of the fragility and unreality of that scene in which we 
all play our uncomprehended parts. He looked at this 
strange world so infinitely pathetic, so irresistibly comic 
as substantial and necessary. No doubt of its reality 
ever entered his mind. 

As Taine said, Scott paused on the threshold of the 
soul. Carlyle said there was nothing spiritual in him; 
the Mystery of Existence (with capitals) was not great 
to him. He quietly acquiesced and made himself at home 
in a world of conventionalities. But, as Carlyle gra- 
ciously concludes, " when he departed he took a Man's 
life along with him" — which upon the whole is not very 
remarkable. 

As Scott took the world as he found it, so we must 
take Scott as we find him, and acknowledge what Emerson 
calls, "the exceptional debt which all English speaking 
men have gladly owed to his character and genius." 
He is indeed "the delight of generous boys." He who 
wrote that fateful tragedy, The Bride of Lammermoor, — 
"worthy of Aeschylus;" and the Heart of Mid-Lothian, 
also wrote those rattling romances, Guy Mannering, 
Quentin Durward, Ivanhoe and The Talisman, and who- 



LAW AND LAWYERS OF SIR WALTER SCOTT. 3 

soever reads them, old as he may be, may become for 
the time a boy again. 

Scott was a worshipper of the God-of-things-as-they- 
are, a rank Tory, a valiant Jacobite from a boy, perhaps 
something of a toady withal ; but he was upright, modest 
and fair-minded, he was gentle and generous and truthful, 
(except in one egregious instance), good humor streamed 
from every pore, he was thoroughly in sympathy with 
everybody, including himself, he was sane, cool and 
courageous, he was born under a dancing star ; and when 
that fateful day arrived of threatened insolvency, he 
wrote in his journal Venit ilia suprema dies and without 
a whimper sat down at his desk. He wrote a volume of 
Woodstock (there were three of them) in fifteen days and 
said he could have done it in ten, were it not for his 
Court of Sessions work. The motto on his sun dial was 
"Work for the night is coming," and in his books he 
often says "To-morrow is a new day." 

"The sun set, but set not his hope; 

Stars rose, his faith was eariier up; 

He spoke, and words more soft than rain, 

Brought the Age of Gold again; 

His action won such reverence sweet, 

As hid all measure of the feat." 

But I have no desire to don the waxen wings of criti- 
cism or biography. The subject of this paper is the 
Law and Lawyers of Scott, and our purpose is to portray 
Walter Scott as a lawyer and to trace the influence of 
his legal training and study upon his writings. No one 
reading his novels and poems without this thought in 
mind can realize how much of their interest, learning 
and humor is derived from this source. It is safe to say 
that had not Scott been a lawyer his writings would have 
lost much of their characteristic flavor. 

Walter Scott the son of Walter, was born August 15, 
1 77 1. He died September 21, 1832. In his fifteenth 
year he became an industrious apprentice in the office 
of his father, a Writer to the Signet, and in the little back 
room, underwent the toilsome, but beneficial, drudgery 



4 LAW AND LAWYERS OF SIR WALTER SCOTT. 

of an attorney's clerk, learning, what he never forgot, 
the value of work, — 

"That grips together the rebellious days." 

He says that he disliked the monotony of the office, 
detested its confinement, and reviled the "dry and 
barren wilderness of conveyances," but he was ambitious 
and said of himself that when actually at the oar, no 
man could pull harder than he. He made his extra 
pocket money for books and the theatre by copying 
papers, and once wrote 120 folios without stopping. He 
then decided to adopt the advocate's profession, and 
from 1789 to 1792, pursued the regular course of study, 
including Heineccius' Analysis of the Pandects and 
Erskine's Institutes. The Scots law formed a complete 
and interesting system, dating as a whole from the 
institution of the Cotort of Session in 1532, by James V, 
having its composite origin in the Civil, Canon and 
Feudal laws, English, French and Scottish customary 
law, with statutory modifications, a tangled skein of 
many colored threads, woven into a picturesque and 
serviceable tartan plaid by men inferior to none in legal 
ability and learning, for as Scott himself said, although 
Heaven did not form the Caledonian for the gay world 
a Scotchman is a born lawyer. The Court of Session 
by the way was originally modelled after the Parliament 
of Paris and the Scottish lawyers frequently studied in 
Paris and Leyden. 

Scott, himself, describes Scottish law as a fabric formed 
originally under the strictest influence of feudal princi- 
ples, but renovated and altered by the change of times, 
habits and manners, until it resembles some ancient 
castle, partly entire, partly ruinous, partly dilapidated, 
patched and altered during the succession of ages, by 
a thousand additions and circumstances — a comparison 
reminding one of Blackstone's similar description of 
the common law in his third book. 

Scott with his friend and fellow student, William 
Clerk, was called to the bar on July 11, 1792, in his 21st 



LAW AND LAWYERS OF SIR WALTER SCOTT. 5 

year. With characteristic humor and at the same time 
exhibiting his fondness for the history of the law, he 
wrote his thesis (which apparently has never been 
printed) on the title, De Cadaveribus Punitorum, (Con- 
cerning the disposal of the dead bodies of Criminals.) 
Dig. xlviii, c. 24, and dedicated the same to Lord Brax- 
field, the "hanging judge," or, as Scott used to allude to 
him, "Old Braxie." He was a well-known figure on 
the Scottish Bench, curious stories are told of him, and 
he was the original of Stevenson's Weir of Hermiston. 

In Redgauntlet Scott introduces himself as Alan Fair- 
ford, his father as Alexander or "Saunders" Fairford 
and his friend William Clerk, as Darsie Latimer, the 
hero of the story. In the novel old Fairford writes to a 
friend, as Scott senior may well have done, — "Alan has 
passed his private Scots law examination with good 
approbation — a great relief to my mind. His public 
trials, which are nothing in comparison, save a mere 
form, are to take place by order of the Honorable Dean 
of Faculty on Wednesday first; and on Friday he puts 
on the gown and gives a bit chack of dinner to his friends 
and acquaintances, as is the custom." In the novel 
Alan's thesis does not concern the dead bodies of crimi- 
nals, but is upon the title " De periculo et commodo rei 
venditae," and according to the story, Alan studied 
law to please old Fairford who regarded as the proudest 
of all distinctions the rank and fame of a well-employed 
lawyer, and would have laughed with scorn at the barren 
laurels of literature. Scott's description of Alan was 
true of himself; "He had a warmth of heart which the 
study of the law and of the world could not chill, and 
talents which they had rendered unusually acute." 

In Scott's first criminal case, he defended a poacher, 
and whispered to his client, as he heard the verdict, — 
not guilty — "You're a lucky scoundrel." "I am just 
of your mind," was the reply, "and I'll send you a hare 
in the morn." 

But when retained in a more important case, he was 
not so fortunate. The General Assembly of the Kirk 



O LAW AND LAWYERS OF SIR WALTER SCOTT. 

of Scotland sat in judgment in the case of a clergyman 
whose name was M'Naught, though it should have been 
M 'Naughty, for he was accused of habitual drunkenness, 
celebrating irregular marriages, singing of profane songs 
and dancing with a "sweetie wife," that is a lassie who 
sold gingerbread, or "sweeties" at a country frolic. 

On account of the personnel of the Court, Scott could 
not have prudently made the obvious defence that the 
reverend gentleman had at the most been guilty of mere 
clerical errors, so he was unfortunately obliged to defend 
the case upon its slender merits. As he quoted more at 
large from his client's convivial ditties than was agreeable 
to the General Assembly, one of that venerable court 
called him sternly to order, while his chums, who filled 
the gallery, encotiraged him with shouts of "encore." 
Disconcerted by these inconsistent suggestions, Scott 
made somewhat of a fizzle, at any rate, Mr. M'Naughty 
was convicted, and his youthful advocate walked out of 
court feeling as we have all sometimes felt, that the 
whole azure canopy had suddenly shrivelled into a 
blackened scroll. He was greeted by his cronies with 
shouts of laughter, and dragged off to a neighboring 
tavern where they spent the evening in a High Jinks, 
with which the Scottish lawyers were wont to drive 
away dull care. 

In Guy Mannering Scott describes a High Jinks in 
which Paulus Pleydell, Esq. was found taking a promi- 
nent part when Mannering and Dandie Dinmont sought 
him out for advice. In these merry makings dice were 
thrown by the company and those upon whom the lot 
fell, were obliged to assume certain fictitious characters 
or repeat verses. Forfeits were easily incurred and 
paid by additional rounds of drinks. Pleydell was 
grotesquely attired as King of the Revels. "It's him," 
said Dandie, astounded at the sight, " Deil o' the like 
o' that ever I saw." Dandie wanted to retain Pleydell 
in a dispute with a neighbor about a lot of land worth 
scarcely five shillings a year. "Confound you," said 
Pleydell, "why don't you take good cudgels and settle 



LAW AND LAWYERS OF SIR WALTER SCOTT. 7 

it?" "Od, sir," answered the fanner, "we tried that 
three times already; but I dinna ken, we're baith gey 
good at single stick and it couldna weel be judged." 

" Then take broadswords and be d d to you, as your 

fathers did before you," said the counsel learned in the 
law. Dandie was at first about to take the advice in 
earnest, and goes away in sorrow, but afterwards 
Pleydell takes his case. "I don't see after all," said he, 
"why you should not have your lawsuits too, and your 
feuds in the Court of Session, as well as your forefathers 
had their manslaughters and fire raisings." 

Scott himself was no anchorite; he rather prided 
himself on his skill in making punch, and as he said in 
his Journal, he thought "an occasional jolly bout im- 
proved society," and recommended a little magnesia 
for the "morning after." 

Later on Scott defended a young man charged with 
homicide and secured his acquittal. Part of his brief 
is given by Lockhart in Chapter vii. It is a careful and 
conscientious though rather labored piece of work. 

It must be confessed that Scott did not score a brilliant 
success at the Bar, although in a letter to his fiancee 
in 1797, he claimed that none of his contemporaries had 
very far outstripped him, and on December i6, 1799, 
he was glad to accept the office of Sheriff or Sheriff Depute 
of Selkirkshire, a position which paid ;^2 5o or ;£3oo per 
annum, and did not conflict with his private practice, 
but rather advanced it. The duties of a Scotch sheriff 
are, naturally, very different from those of the English 
official of the same name, as they resemble those of a 
county court Judge. Scott's jurisdiction included gen- 
erally all civil actions, personal and possessory, and 
certain offences against the criminal law ; and in addition, 
he returned juries and executed writs. Scott's Letters 
and Journal contain frequent references to his duties 
which he discharged in a humane and sensible manner. 

He often procured a settlement of insignificant cases; 
as he said "there is something sickening in seeing poor 
devils drawn into great expenses about trifles, by inter- 



8 LAW AND LAWYERS OF SIR WALTER SCOTT. 

ested attorneys." But he also admitted, doubtless 
recognizing the legal mind and litigious nature of the 
Scot, that too cheap access to litigation has its evils on 
the other hand. 

In 1830, a convict attempted to escape from the 
Court room. Sir Walter, with sixty years on his head, 
leaped, game leg and all, from the Bench and stopped 
him with his own hand. No English Sheriff could have 
done more. 

Even before his appointment as Sheriff, Scott was 
incited by the writings of Matthew Gregory Lewis, the 
celebrated "Monk," to try his hand at ballad writing in 
imitation of the German of Biirger, and soon found that 
the "fair fields of old romance" were ready for his culti- 
vation. His work in ballad writing, and the Border 
Minstrelsy, culminated in 1805, when the Lay of the Last 
Minstrel marked a new epoch in literature. The general 
admiration of this lovely poem, led Pitt to appoint Scott 
one of the Clerks of Session, apparently discovering 
some connection between poetry and a snug berth, and, 
although Pitt died just at that time, the appointment 
was confirmed by Fox as is gratefully commemorated 
by Scott in the Introduction to Marmion. 

Just one hundred years ago, therefore, to be exact on 
March 8, 1806, Scott's appointment was gazetted and 
he took leave of one profession to adopt another. His 
salaries as Sheriff and Clerk of Session, aggregated about 
;£|i5oo; his duties in the first office were not burdensome, 
while as Clerk he was only occupied during the sessions 
of the Court. The Clerk's duties were not so light as he 
modestly stated them to be, but called for diligence, ac- 
curacy and regularity, as frequentnotes inhis Journalattest, 
taking up probably about one-half of his time. For twenty- 
five years he held this office, until retired by disability, 
November 18, 1830, when his salary was reduced to £?>^o. 

His place in Court is still pointed out, where he wrote 
many a page of Waverley novels, to the accompaniment 
of long-winded argument, for Scott was never disturbed 
by his stirroundings. He confesses he sometimes took a 



LAW AND LAWYERS OF SIR WALTER SCOTT. 9 

nap. "The Lords," said he, "may keep awake and mind 
their own affairs;" but when Court adjourned and his 
duties were over, he was his own master and would pack 
up his papers in his green bag and hurry off to meet his 
friends at a "Gaudeamus" or to buy a fine print of 
Charles Edward. Yet sometimes this official drudgery 
offended him. "Old Hutton," he relates, " parens et 
infrequens Deorum culior, used to say it was worth 
while going to a Presbyterian kirk for the pleasure of 
coming out, and truly I am of the same opinion as to 
the Court of Session." 

In 1808, Scott was made Secretary of the Scottish 
Judicature Commission, which was appointed at the 
instance of Lord Eldon, who had no objection to innova- 
tions so long as they did not affect his own court which 
needed them the most. Scott regarded this as a post of 
considerable difficulty, as well as distinction. The com- 
mission reported in 1810, a bill which made great changes 
in the law and led Scott to write an essay on Judicial 
Reform, an able paper, portions of which are given by 
Lockhart. 

Scott was opposed to the introduction into Scotland 
of trial by jury in civil cases, which occurred in 181 5, 
and expressed his disgust with the inferior character of 
the jurors under the new system. He was also much 
opposed to the House of Lords sitting in London as a 
Supreme Court for Scotland, and predicted from it the 
downfall of the Scottish Bench, Bar and Law, and in 
Redgauntlet we find one of the characters, Hugh Red- 
gauntlet, denouncing the Scottish advocates as mongrel 
things that must creep to learn the ultimate decision of 
their causes, to the bar of a foreign court. In the Heart 
of Mid-Lothian he expresses himself in favor of public 
executions on account of their effect on the spectator. 

But while thus generally conservative, he was in ad- 
vance of his time in advocating the abolition of capital 
punishment for all save a few crimes, and its infliction 
with certainty in all proper cases. He disliked the Scotch 
verdict " not proven," that mediutu, quid, saying: thatone 



lO LAW AND LAWYERS OF SIR WALTER SCOTT. 

who is not proven gviilty is innocent in the eye of the 
law. He objected to strict rules of court, e. g. those im- 
posing judgments by default, which are seldom enforced 
because the penalty is disproportioned to the offence, so 
that the rule ends by being a scarecrow. He thought 
that attorneys ought to be fined for errors or omissions 
in practice. 

Scott loved and honored his own profession and re- 
spected his brother lawyers. He used to say after he had 
retired from practice, that intelligent barristers were the 
best companions in the world and their conversation 
amused him more than that of other professional men, 
because there was more of life in it, with which, in all 
its phases, they became acquainted. 

It is not, therefore, surprising to find Scott's novels 
filled with his impressions of the law and lawyers. He 
could afford (and so can we) an occasional jest at the 
expense of our profession or shall we say craft, but there 
is a vast difference between Dickens' treatment of law 
and lawyers and Sir Walter's. Dickens saw nothing good 
in either, and caricatured both. Scott on the other hand 
was an artist ; he knew a thousand times as much about 
the subject as Dickens, and in his fair-minded manner, 
endeavored to give a just picture of it. But, naturally, 
the scamps of the law play a larger part in literature than 
their betters, for a good, well-behaved lawyer is in sooth 
a very prosaic individual. We — let us say we for the 
sake of euphony — do the day's work for a mere living 
wage, keep our clients out of the clutches of the Courts 
as much as we can ; we labor on our briefs which nobody 
reads, except of course, the Judges for whose mental im- 
provement they are intended, and when we die, our 
libraries, if we have any, are generally sold at auction. But 
a bad lawyer is such a picturesque villain that he is the 
stock character of every novelist and pla3rwright — Judas 
Iscariot, if he were not a lawyer, is said to have carried 
a bag, the universal badge of oui profession, so our 
enemies may regard him as an honorary member of the 
bar. 



LAW AND LAWYERS OF SIR WALTER SCOTT. I I 

Scott puts in the mouth of The Antiquary, an estimate 
of the honest lawyer: " In a profession," says he, " where 
unbounded trust is necessarily imposed, there is nothing 
surprising that fools should neglect it in their idleness 
and tricksters abuse it in their knavery but it is the more 
to the honour of those and I will vouch for many, who 
unite integrity with skill and attention, and walk honoura- 
bly upright where there are so many pitfalls and stumbling 
blocks for those of a different character. To such men, 
their fellow citizens may safely entrust the care of pro- 
tecting their patrimonial rights and their country the 
more sacred charge of her laws and privileges." But, 
"They are best aff, however, that hae least to do with 
them," said Edie Ochiltree, interrupting the panegyric. 

In Paulus Pleydell, "a good scholar, an. excellent 
lawyer and a worthy man," Scott undoubtedly repro- 
duced some lawyer of his acquaintance, and Ticknor 
said that in conversing with Scott, he observed the simi- 
larity of the author's opinions with those expressed by 
Pleydell in Guy Mannering. We have already noticed 
how Mannering discovered Pleydell on a Saturday night 
at the tavern where he was celebrating a High Jinks. 
On the Sunday, Pleydell was a different man, piloted 
Mannering to church, and then took him home to dinner, 
where he showed Mannering his library filled with books, 
"the best editions of the best authors" — "These," said 
Pleydell, "are my tools of trade. A lawyer without 
history or literature, is a mechanic, a mere working 
mason; if he possesses some knowledge of these, he may 
venture to call himself an architect." * * * "It 
is the pest of our profession," continued Pleydell, "that 
we seldom see the best side of human nature. People 
come to us with every selfish feeling newly pointed and 
grinded. In civilized society, law is the chimney through 
which all the smoke discharges itself, that used to circu- 
late through the whole house and put every one's eyes 
out." He sends for his clerk, Driver, who of course was 
at a High Jinks. "That's a useful fellow," said the 



12 LAW AND LAWYERS OF SIR WALTER SCOTT. 

counsellor, "and he's such a steady fellow — some of 
them are always changing their alehouses so that they 
have twenty cadies sweating after them, but this is a 
complete fixture in Luckie Wood's, there he's to be 
found at all times when he is off duty : Sheer ale supports 
him, it is meat, drink and clothing, bed, board and wash- 
ing." Then Scott gives an amusing account, too long to 
quote, of how Pleydell and Driver got up an appeal case 
on a Saturday night, during a High Jinks. " Law's like 
laudanum," said Pleydell, in another place, "it's much 
more easy to use it as a quack does, than to learn to 
apply it like a physician." 

Even Geddes, the Quaker of Redgauntlet admits that 
he has known many righteous men who have followed 
the profession in honesty and uprightness of walk — "The 
greater their merit who walk erect in a path which so 
many find slippery." 

Scott is strongest when he writes of Scotland and 
Scotchmen. He often admits that he knows little of 
English law, and when he speaks of it, he is apt to slip. 
But in Scots law and the feudal system, on which it was 
founded, he was at home. There was probably no 
country in which the feudal system was more deeply 
rooted and there is probably none in which so much of 
its spirit remains to this day. In no country was gene- 
alogy more generally studied; for one reason the canny 
Scot with his bonny blue een wide open for the main 
chance always considered the possibility of his becoming 
the ultimate heir of entailed estates. 

Scott was proud of his ancestry. Some of his ancestors 
were Quakers, so he was proud of them, some were 
notorious Highland thieves, so he was proud of them; 
he loved a villain for a hero, if only he were Scotch; he 
loved the free hooter's border raids, the stark moss- 
trooper's wild foray, he loved the stories of the dark 
days when Scotland's forests were filled with wild beasts 
pursued by wilder men, and men in turn were chased 
with savage hounds — men of whom he sang : 



LAW AND LAWYERS OF SIR WALTER SCOTT. 1 3 

"Wild through their red or sable hair, 
Looked out their eyes with savage glare 

On Marmion as he pass'd, 
Their legs above the knee were bare, 
Their frame was sinewy, short and spare 
And hardened to the blast." 

These savages ate their venison raw, squeezing out the 
dripping blood between pieces of wood. 

In the time of Charles I, a fellow known as Christie's 
Will, kidnapped a Judge whose opinion was likely to be 
undesirable, and kept him close until the case was finished ; 
which was considered an excellent joke. A sheriff who 
had become somewhat unpopular, was plunged into a 
boiling cauldron and furnished broth for his murderers. 
Among the most ferocious of these savages were the 
blood-thirsty Macleods, a tribe of Scandinavian ex- 
traction, whose feud with the MacDonalds is told by 
Scott in the Lord of the Isles. These terrible wretches 
finally discovered the MacDonalds in a cavern, built a 
fire at the entrance and suffocated the whole tribe. In 
1814, Scott visited the cave and found recent relics of 
the massacre, bringing away a MacDonald skull as a 
memento. Once James VI tried to civilize the Macleods 
by introducing colonists among them, but the Macleods 
rose against the intruders and exterminated them. 

Scott was a gentle spirit, but his heart warmed within 
him, when he read and told of all these things. After 
all, these fellows were Scotchmen and he was a Scot and 
it was all as glorious and grand as the sounding verses: 

"Regibus et legibus Scotici constantes 

Vos clypeis et gladiis pro patriis pugnantes, 

Vestra est victoria, vestri est et gloria 

In cantu et historia, perpes est memoria." 

We do not ordinarily expect to find much of legal inter- 
est in poetry ; not only however do Scott's poems contain 
many legal allusions, but Scott has added to them fre- 



14 LAW AND LAWYERS OF SIR WALTER SCOTT. 

quent annotations. He appends to the Ballad of Johnie 
Armstrong the bond of man rent, showing the feudal 
service by which the Armstrong held his land of Lord 
Maxwell, Warden of the West Marches. Lord Maxwell's 
Good-night suggests the bond of man rent between Kirk- 
patrick and Lord Maxwell. Scott notes in connection 
with the Lochmaben Harper, the peculiar allodial rights 
of Bruce 's tenants ; the bond of alliance or feud stanching 
between the clans of Scot and Ker, and he also refers to 
numerous unusual forms of feudal tenure. 

The law of Clan MacDuff granted exemption from 
ordinary jurisdiction in cases of homicide, without pre- 
meditation, to any member of the clan who took refuge 
at MacDuf?'s Cross. In Sir Tristreni, Queen Ysonde is 
condemned to essay the ordeal of hot iron, and Scott 
appends a long note on the subject. In the Lay of the 
Last Minstrel he refers to the "neckverse" of the 51st 
Psalm, which was read by those claiming benefit of 
clergy, to save their necks. Earl Morton claims his 
vassals best steed as heriot, thus provoking a conflict 
so that: 

"The valley of Eske from the mouth to the source 
Was lost and won for that bonny white horse." 

The oath ordeal is prescribed to Deloraine for march 
treason ; we have the mutual defiance of the English and 
Scottish heralds ; and the trial by single combat between 
Musgrave and Deloraine, so characteristic of the feudal 
system and ancient law, of which Scott gives a long 
description. 

In Marmion Scott refers again to the trial by combat 
and to the feudal tenure under which land was held of 
the Abbot of Whitby: 

"Then Whitby's nuns exulting told 
How to their house three barons bold, 
Must menial service do." 



LAW AND LAWYERS OF SIR WALTER SCOTT. 1 5 

Most interesting is the fate of Constance de Beverley, 
"immured" as punishment for her sin: 

' ' Yet well the luckless wretch might shriek, 
Well might her paleness terror speak! 
For there were seen in that dark wall, 
Two niches, narrow, deep and tall; — 
Who enters at such grisly door. 
Shall ne'er I ween find exit more. 
And now that blind old Abbot rose, 
To speak the Chapter's doom, 
On those the wall was to enclose 
Alive, within the tomb; — '.' 

Truly a gruesome fate recalling Poe's tale of the Cask 
of Amontillado and Balzac's La Grande Breteche. 

But now comes Professor Maitland, who shows us in 
his essay on The Deacon and the Jewess, that we are all 
wrong about the word " immuratus ; " that it does not 
mean "walled in," but merely imprisoned for life and 
fed on bread and water, a very unromantic punishment, 
in short that we must not " take our Marmion too seri- 
ously." Such is our respect for this great scholar, whose 
mere guess is better than a thousand arguments, that we 
must place this story also upon the shelf where rest our 
shattered illusions. So fare-thee-well, O shade of Con- 
stance de Beverley, and fall upon thy bended knees, if 
haply shades have knees, before your. Champion, who, 
after four centuries, hath rescued thee from a lingering and 
horrible death. 

In Rokeby, Scott gives us the Statutes of the Bucaniers 
by which the pirates distributed their booty: 

"When falls a mate in battle broil 

His comrade heirs his portion'd spoil; 

When dies in fight a daring foe, 

He claims his wealth who struck the blow." 

In this poem Bertram unconsciously declares himself 
to be the murderer of Mortham, and Scott in a note 
speaks of the frequency wath which conscience stricken 
men, impelled by the Imp of the Perverse, confess or 



1 6 LAW AND LAWYERS OF SIR WALTER SCOTT. 

allude to their crimes and refers to the case of Eugene 
Aram, mentioning also another case from his personal 
experience. 

In Rokeby Scott introduces the ballad of Wild Darrell 
of Littlecote Hall, with which is connected the name of 
Sir John Popham, Chief Justice in Queen Elizabeth's 
time. The tradition is that Popham acqiaired Littlecote 
Hall from the owner as a bribe for his permitting Darrell 
to escape the penalty of his crime. Campbell in his life 
of Popham, takes the story from Rokeby and Scott's 
notes. 

We will now go through the Waverley novels and 
extract some of the more interesting of Scott's legal ref- 
erences. To collect all would unduly expand this paper. 

Much of the humor of Waverley is furnished by the 
Baron of Bradwardine and Bailie MacWheeble, the latter 
belonging either to the clan of Wheedle or that of Quibble, 
both having produced persons eminent in the law. 
Bradwardine, himself, had studied law, but by never 
engaging in practice, had to the best of his inability, 
discharged the debt he owed to his profession. He was 
fond of interlarding his conversation with legal phrases 
to show his knowledge of the science, and his favorite 
theme was the feudal tenure under which he held his 
barony by charter from David the First "cum liberali 
potestate habendi curias et justicias, cum fossa et furca, 
et saka et soka, et thol et theam et ingangthief et outgang- 
thief, sive hand habend sive bakbarend" and as no one 
knew the meaning of all these words, his self importance 
was vastly increased. His tenure would be called in 
England, grand sergeanty and consisted "in servitio 
exuendi seu detrahendi, caligas regis post battaliam," 
that is in undoing or pulling off the king's boots after a 
battle; and although his only child was his daughter 
Rose, he persisted that his barony, on account of the 
nature of the feudal service, was a male fief, passing at 
his death to a distant cousin. After the battle of Preston 
Pans, in which the Baron fought on the side of Charles 
Edward, he insisted on performing the ceremony, despite 



LAW AND LAWYERS OF SIR WALTER SCOTT. 1 7 

the fact that Charles Edward was Prince, not King, and 
did not wear boots but brogues. 

Scott describes how after Culloden, Fergus Maclvor 
is tried and executed for high treason — one of the blessings 
we are told which England had conferred upon Scotland, 
whose laws in that respect had been milder, but the at- 
tainder of the Baron and Waverley were removed by 
pardons secured by lawyers Clippurse & Hookem. Colonel 
Talbot in gratitude to Waverley, purchased the estate 
from Inchgrabbit the heir male, and conveyed Tully 
Veolan to its old owner, burdened only with a marriage 
settlement in favor of Waverley and Rose; the story 
ends with Duncan MacWheeble singing the Hymeneal 
anthem of how he circumvented Inchgrabbit and his 
lawyer, in driving the bargain ; and at the last the old man 
draws up "a wee minute of an ante-nuptial contract 
intuitu matrimonii, so that it cannot be subject to re- 
duction hereafter as a donation inter virum et uxorem," 

Scott refers in Waverley and again in Redgauntlet to the 
leading case of Luckie Simpson's cow. It was an old 
custom in Scotland for the landlord, as his parting guest 
stood at the door, about to mount, to present 
him with a farewell drink called the stirrup cup. Now 
Luckie Jamieson had brewed a peck of malt, and set 
the liquor at her door to cool. Luckie Simpson's cow 
came wandering by, seeking what she might devour, was 
attracted by the foaming beverage, smelt, tasted and 
yielded to the tempter. The unaccustomed drink mounted 
to the animal's head, descended to her legs, and affected 
her understanding in both directions, so that her guilt 
was apparent to the enraged ale wife, who demanded of 
Luckie Simpson the value of the brew. Litigation ensued, 
the Bailie heard the case and then enquired of the plaintiff 
whether the cow had sat down to take her drink or 
imbibed it standing. It being admitted that the cow had 
committed the deed whilst on her feet, the Court adjudged 
the drink to be a stirrup cup for which no payment could 
be demanded and dismissed the suit. 

The plot of Guy Mannering was taken from the case 



l8 LAW AND LAWYERS OF SIR WALTER SCOTT. 

of Annesley v. the Earl of Anglesey, tried in 1743, 17 
State Trials, 1225, and Scott appropriated the names of 
many of the witnesses to characters in the novel, which 
contains many legal incidents. As Paulus Pleydell re- 
presents the respectable lawyer, Gilbert Glossin is the 
shyster. He tries to push the sale of old Bertram's 
property, in order to buy it in, and get possession be- 
fore the long-missing heir should return, it being under- 
stood that the property could not be sold for debt if 
the heir were living. 

The examinations of Dirck Hatteraick by Glossin, 
sitting as a magistrate, of Vanbeest Brown by Sir Robert 
Hazlewood, and of Hatteraick and Glossin by Pleydell, 
Sir Robert Hazlewood and MacMorlan, illustrate the 
differences between the English and Scottish procedure ; 
the latter more resembling the French system, of private 
examinations previous to trial, although the "third 
degree," as practised here, might give suggestions to 
both. Glossin being committed as accessory to the 
kidnapping of Harry Bertram, claims it to be a bailable 
offence and refers to a case where resurrection women, 
who had promised to secure a child's body for dissection, 
stole and murdered a child rather than break their word 
and disappoint their employers. 

Those of us who have had the pleasure, after a funeral, 
of reading the will to the assembled family, will appreciate 
Mr. Protocol's performance of that solemn, but some 
times amusing business. 

" Mr. Protocol having required silence, began to read 
the settlement aloud in a slow, steady, business-like tone. 
The group around, in whose eyes hope alternately awak- 
ened and faded, and who were straining their appre- 
hensions to get at the drift of the testator's meaning, 
through the mist of technical language, in which the 
conveyance had involved it, might have made a study 
for Hogarth." As the document was of an unexpected 
nature, with contingent uses to charities, the effect was 
startling — and produced much mortification which is 
Scots law for mortmain. 



LAW AND LAWYERS OF SIR WALTER SCOTT. 1 9 

In Scots law it will be noticed a testamentary dis- 
position of lands was effected by means of a trust deed or 
mortis causa settlement, reserving a life estate to the 
grantor, quite different in form, however similar in effect 
to wills as we know them. However, a common lawyer 
must not venture to meddle with a Scotch will lest he 
be guilty of vicious intromission, and in addition expose 
himself to unfeeling criticism. To quote the elegant 
remark of Earl Douglas — "The man sits full still that 
has a rent in his breeks." 

In the last chapter of Guy Mannering, a reference is 
made to the macer's court, composed of tipstaves, as 
we should call them, who constituted a special court for 
trying questions of relationship and descent, the judges 
acting as assessors to their own doorkeepers. When 
Dinmont visits Bertram in jail, the keeper wants to lock 
up the jail, refusing to allow Dinmont to stay because 
he had committed no malefaction. "I'll break your 
head," was Dandie's reply, "if ye say ony mair about it, 
and that will be malefaction eneugh to entitle me to 
ae night's lodging wi' you ony way." The argument was 
successfvd, for as the jailor remarked, "A wilful man 
maun hae his way." 

The plot of The Antiquary turns on the legality of the 
marriage of Lord Glenallan and Eveline Neville, but its 
chief interest to the lawyer will be found in the enter- 
taining conversation of the Antiquary, Jonathan Oldbuck. 
The Antiquary had read law and made himself master 
of the learning of the feudal law, but being under no 
necessity to practice, had followed his natural bent and 
ctiltivated his taste for old books and ancient learning. 
He would ponder over an old black letter copy of the 
Acts of Parliament for days rather than play golf; he 
would trace the vestiges of an old Roman camp ; and he 
discovered a curious stone inscribed with initials inter- 
preted in a learned manner by the Antiquary, and in a 
trivial fashion by Edie Ochiltree, reminding us of the 
similar story of the stone discovered by the Pickwick Club 
which, indeed, Dickens may have borrowed from Scott. 



20 LAW AND LAWYERS OF SIR WALTER SCOTT. 

The Antiquary is ready to remind Dousterswivel of 
the Act of 9 George II, c. 5, against cheats and imposters, 
warns Hector Mclntyre not to interfere with the sheriff's 
officer, on account of the Statute of Wilham the Lion 
against deforcement, and in the entertaining examination 
of Edie Ochiltree before Baihe Littlejohn, cites the Act 
of 1701, regulating bailbonds and so obtains Ochiltree's 
release on nominal bail. So he gives us an amusing 
account of the law of imprisonment for debt in Scotland, 
which, technically, was not permitted; but any one who 
disobeyed the King's writ requiring payment, was pro- 
claimed by three blasts of a horn at Edinburgh market 
place to be a rebel and imprisoned by an elegant legal 
fiction, for his ungrateful contempt of the royal mandate. 

The Antiquary delighted in the old-fashioned nick sticks 
or tallies used by bakers to record the number of loaves sold 
to their customers, just as accounts used to be kept by 
the Exchequer. The writer can remember, as a boy, that 
this ancient method was used by bakers in this city. 

In the Antiquary we are told the story of the ghost 
who appeared to the despairing litigant and show'ed him 
the secret depositary of the old deed, the missing link 
in his chain of title; and in the opening of the book, 
mine host Mackitchinson, speaks of Hutchison against 
Mackitchinson — "a weel kenn'd plea, about our back- 
yard; a ganging plea my father left me and his father 
afore left him. It's been four times in afore the Fifteen 
and deil ony thing the wisest o' them could make o't 
but just to send it out again to the Outer house. O, its 
a beautiful thing to see how long and how carefully 
justice is considered in this country!" 

"The clergy," says the Antiquary, "live by our sins, 
the medical faculty, by our diseases, and the law gentry, 
by our misfortunes." — But much of the Antiquary's 
conversation is like certain flowers that lose their perfume 
when cut. You must them enjoy where they grow. 

In Rob Roy frequent allusion is made to the contracts 
of black mail, an ingenious arrangement on the Border, 
oy which the most powerful scoundrel, such as Rob Roy, 



LAW AND LAWYERS OF SIR WALTER SCOTT. 21 

agreed to insure his customers or clients against thefts, 
for an annual sum. He then employed one half of his 
thieves to steal and the other half to recover stolen 
cattle. Those who received or paid money under contract 
of blackmail, were guilty of a capital offence under a 
statute of 1567, but as Nicol Jarvie observed, "if the law 
canna protect my barn and byre what for suld I no engage 
wi' a Hieland gentleman that can? Answer me that." 

Squire Inglewood and his clerk Jobson, the rascally 
attorney, figure in this book; the former being one of the 
quorum and custos rotulorum, an office of which Sir 
Edward Coke wisely saith, " The whole Christian world 
hath not the like of it, so it be duly executed . ' ' The exami- 
nation of Frank Osbaldistone by these worthies is well 
told. Jobson has the statute law at his tongue's end, but 
it is a relief to know that he is finally struck off the list 
of attorneys. 

Bailie Nicol Jarvie is one of the best of Scott's charac- 
ters, and his description of life in the Highlands is amusing. 
"Never another law hae they but the length o' their 
dirks; the broadsword's pursuer or plaintiff as you 
Englishers ca'it, and the target is defender; the stoutest 
head bears langest out; and there's a Hieland plea for 
ye." Rob, himself, cared little for legal forms, for when 
he paid his debt, Jarvie signed the receipt, but could not 
find two witnesses, as required by law. Rob remarked 
that no man within three miles knew how to write, and 
threw the bond in the fire with the words, " That's a 
Hieland settlement of accounts." 

In Old Mortality our attention is arrested by the exami- 
nation and torture of Ephraim MacBriar, the Cameronian 
zealot, by the Privy Council of Scotland, in which both 
judicial and executive powers were vested. Scott gives 
a most graphic description of MacBriar's dauntless 
refusal to incriminate other persons than himself, his 
fearful torture with the boot, his persistent defiance and 
his speedy execution for treason. It is hard to realize 
that such things were done with the sanction of law little 
more than two hundred years ago. 



22 LAW AND LAWYERS OF SIR WALTER SCOTT. 

The Heart of Mid-Lothian, that great prose drama, 
marred only by its strange anticlimax (for Scott was 
generally artistic enough to stop when he was done) is 
replete with interest to the lawyer. Jeanie Deans is one 
of the greatest heroines of fiction — yet not of fiction, 
for she really lived as Helen Walker; and Scott truly 
says, "in the State Trials or in the Books of Adjournal, 
every now and then you read new pages of the human 
heart and turns of fortvme far beyond what the boldest 
novelist ever attempted to produce from the coinage of 
his brain." 

The story is familiar. Efiie Deans was indicted under 
the Statute of 1690, c. 21, which in case of child murder, 
enacted that certain facts should constitute legal pre- 
sumptions of guilt, to wit: the concealment by the mother 
of her condition, and the death of the child or failure to 
produce it. The Act was passed apparently upon the 
suggestion of the Court Re Smith, (1679 ;) i Fountainhall, 
47, who referred with favor, to the English Statute 21 Jac. 
I. c. 27, on the subject; and though afterwards modified 
in practice, the law was not repealed until 1803. 

Passing over the preliminary examination of David 
Deans, and that wonderful and pathetic scene between 
Jeanie and Effie, on the eve of the trial, — Scott never 
wrote a stronger chapter — we come to the trial itself. 
Scott disclaims the ability to describe the forms of a 
Scottish criminal trial so accurately as to abide a lawyer's 
criticism, but we must assume that this statement was 
intended to disguise his authorship, then anonymous, 
*and that his account is technically correct. 

Scots law, more liberal than the English, allowed counsel 
to the panel or defendant, and Effie's attorney was Mr. 
Nichil Novit, her advocate was Mr. Fairbrother. According 
to the practice in Scotland, the witnesses were "enclosed", 
or separated from all information of what was passing, 
and called into court when their testimony was desired. 

*An anonymous writer, however, evidently an English lawyer, in 
5 Law Review 44 (1846), severely criticizes Scott for his inaccuracy 
in legal allusions, particularly in his account of this case. 



LAW AND LAWYERS OF SIR WALTER SCOTT. 23 

The writer has seen this practice followed in Jamaica, 
even in a civil case. When the court opened, Effie, 
between two sentinels, with bayonets, was arraigned to 
the indictment; she pleaded not guilty and both counsel 
addressed the court, speaking to the indictment and the 
defence, viz. that the prisoner had communicated her condi- 
tion to her sister. The court then pronounced the indict- 
ment and the defence relevant and the jury was em- 
panelled ; the prisoner again pleaded, and then the witnesses 
were heard. It will be noted that in Scotland the accused 
is subjected to a preliminary examination. He may refuse 
to answer, but if he answers, the record of the examination 
may be used as corroborative evidence against him at the 
trial. Efhe's declaration, accordingly, is read in full. 
Her counsel first offered proof of character and then called 
Jeanie as his principal witness. She was sworn and certain 
formal questions were put to her, including "whether any 
one had instructed her what evidence she had to deliver. " 
It seems possible from this, that in the Scottish practice 
counsel are not at liberty to confer personally with their 
witnesses, for Fairbrother to his great mortification, when 
he puts the crucial question, receives the reply that 
EfRe had said nothing to her. This ruins the case, for 
Fairbrother can do nothing but argue as to the legal 
effect of the prisoner's declaration, as to which he cites 
learned authorities, laying stress on the highly penal 
nature of the statute. 

The Court charges the jury, who retire for conference; 
upon their return, they render a sealed verdict, a lighted 
candle is extinguished and the verdict of Guilty with a 
recommendation to mercy is read. The Court, in pro- 
nouncing sentence, calls the Doomster, a tall haggard 
figtire, dressed in a fantastic garment of black and grey, 
to repeat the sentence of death, and he adds the words, 
"And this I pronounce for Doom." 

But there is another vein in The Heart of Mid-Lothian. 
Indeed this masterpiece contains many illustrations of 
the close connection of tender sympathy and genuine 
humor. Bartoline Saddletree — called Bartoline perhaps 



24 LAW AND LAWYERS OF SIR WALTER SCOTT. 

after Bartolus, a learned Doctor of the Law, or perhaps 
after BartoHnus, another less celebrated Jurist, is an 
amateur lawyer, who throughout the story freely gives 
his opinion upon all legal questions. His favorite book 
was Balfour's Practiques, his genius lay towards the 
weightier matter of the law, and he regularly attended 
the courts to the great neglect of his business, which Mrs. 
Saddletree conducted, a lady well qualified by nature 
and experience to assume at a moment's notice the 
leading soprano role in the matrimonial duet. Barto- 
line indeed was like a Territorial Delegate in Congress, 
permitted to talk but not to vote. His conversation is 
always interlarded with legal tenns, he discusses in a 
masterly way the guilt of Captain Porteous of whose 
case Scott gives a full account; and explains to Mrs. 
Saddletree the theory of legal presumption in Effie's case. 
"The crime is rather a favorite of the law, this species of 
murther being one of its ain creation." "Then if the law 
makes murders," said Mrs. Saddletree, "the law should 
be hanged for them ; or if they wad hang a law}^er instead, 
the country wad find nae faut." 

His account of the pleadings in Marsport vs. Lackland, 
is unfortunately too long to quote; but we must notice 
his remark that the better the pleadings the few-er under- 
stand them, and his cold-blooded criticism of lawyers' 
fees: "After a', its but the wind of their mouth, it 
costs them naething, whereas in my wretched occupa- 
tion of a saddler, we are out unconscionable sums just for 
hides and leather" — Nor should we overlook the case of 
Crombie vs. MacPhail, involving the law of stillicide or 
easement of dripping water. Mrs. Crombie owned the 
inferior tenement, "obligated to receive the natural 
water drap of the superior tenement, sae far as the same 
fa's frae the heavens on the roof of the neighbor's house 
and from thence, by the gutters or eaves upon the inferior 
tenement. But the other night comes a Highland quean 
of a lass and she flashes God kens what out at the east- 
most window of Mrs. MacPhail's house — that's the superi- 
or tenement. I believe the auld women wad hae agreed, 



LAW AND LAWYERS OF SIR WALTER SCOTT. 25 

for Luckie MacPhail sent down the lass to tell my friend 
Mrs. Crombie that she had made the gardyloo out of 
the wrang window out of respect for twa Highland gentle- 
men, that were speaking Gaelic in the close below the 
right one. But, luckily for Mrs. Crombie, I just chanced 
to come in in time to break aff the communing, for it's 
a pity the point suldna be tried. We had Mrs. Mac 
Phail into the Ten mark Coiirt. The Hieland limmer of 
a lass wanted to swear herself free — but haud ye there, 
says I" — Unfortunately here Saddletree is interrupted 
and we shall never know whether he was able to have this 
delicate question of easement settled by the Court. 

That sombre and fateful tragedy, The Bride of Lammer- 
moor, is drawn from the family history of James Dal- 
rymple, who, as Lord Stair, was one of the most con- 
spicuous figures in Scottish jurisprudence. His daughter 
had engaged herself without the knowledge of her parents 
and was compelled by them to marry the suitor of their 
choice, with the fatal results closely copied by Scott in 
his novel. 

Edgar, the Master of Ravenswood and Lucy Ashton, 
likewise become betrothed in secret and she, it seems, 
was under age. Sir William Ashton her father, a lawyer, 
was Lordkeeper, a politic, proud, wary and timid man, 
who had come into possession of the ancestral estates of 
the Ravenswoods by means of certain transactions with 
the old Lord, Edgar's father. While it is not clearly 
stated, he had apparently advanced money to Ravens- 
wood and had taken technical, though legal advantage of 
non-payment, to obtain decisions of the Scottish courts 
in his favor. These judgments, however, were open to 
attack in the British House of Lords, upon equitable 
grounds, and Ravenswood was encouraged to appeal by 
his kinsman and patron, the Marquis of A — 

The engagement of Lucy was repudiated by her parents 
upon the authority of the Levitical law, as stated in the 
30th chapter of Numbers, to the alleged effect that a 
woman is not bound by a vow, from which her parents 
dissent. Ravenswood leaves the country upon a mission 



26 LAW AND LAWYERS OF SIR WALTER SCOTT. 

for his patron, the Marquis; Lucy, under command of 
her mother, writes to break her engagement, no answer 
is received, the day appointed for her marriage to Buck- 
law is fixed, and finally arrives. Just too late, as the 
marriage contract is signed, Ravenswood appears, and 
to him the Reverend Mr. Bide-the-bent reads the text 
upon the authority of which he had declared the nullity 
of the prior engagement. " If a w'oman vow a vow unto 
the Lord and bind herself by a bond being in her father's 
house in her youth ; and her father hear her vow and her 
bond wherewith she hath bound her soul, and her father 
shall hold his peace at her; then all her vows shall stand, 
and every vow wherewith she hath bound her soul shall 
stand. But if her father disallow her in the day that he 
heareth ; not any of her vows or of her bonds wherewith 
she hath bound her soul shall stand; and the Lord shall 
forgive her, because her father disallowed her." 

In Ivanhoe, we pass over Scott's references to the Forest 
laws; the legal status of the Jews temp. Richard I, and 
other topics, incidentally mentioned, until we reach the 
trial of Rebecca for sorcery, in the conclusion of the book. 
Bois Guilbert had rescued Rebecca from the blazing 
castle, and brought her to the Templar's Preceptory of 
Templestowe, with the connivance of Malvoisin the Pre- 
ceptor. Beaumanoir, the Grand Master, making an 
unexpected visit, is induced to believe that Rebecca had 
bewitched Bois Guilbert by her magical art, and the 
Grand Master at once asserts his power and intention to 
try Rebecca for vidtchcraft. 

The trial is conducted by the Grand Master with elabo- 
rate ceremonial. He refers to the rules of the Templaf 
order, as stated by St. Bernard, recites their infraction 
by Bois Guilbert, especially the chapter "Ut fugiantiir 
oscula," and attributes his fall to Rebecca's witchcraft. 
Rebecca, interrogated in her defence and acting upon 
the secret suggestion of Bois Guilbert, demands a trial 
by combat, and throws down her glove which is given to 
Bois Guilbert, appointed to do battle in behalf of the 
Order; all of which is engrossed at length in the official 



LAW AND LAWYERS OF SIR WALTER SCOTT. 2/ 

minutes of the Chapter. The trial by combat is appointed 
for the third day and Rebecca sends word to Isaac of 
York to send Ivanhoe to be her champion. Upon the 
fateful day, the lists are ready and all the preparations 
described by Scott, with his usual zest. Ivanhoe, of 
course, gallops up at the psychological moment, and the 
Grand Master throws Rebecca's glove into the ring with 
the fatal signal words, "Laissez aller;" or as we might 
say, "Let her go!" After the combat and the Templar's 
death, King Richard appears. Malvoisin is arrested on a 
charge of treason and the Templars, Grand Master and 
all, are expelled from their castle. 

What powers the Knights Templar arrogated to them- 
selves in England, and what jurisdiction they assumed to 
try and condemn persons who were not members of their 
order, are questions which Scott does not attempit to 
answer, and we are in the position of the Scotch minister 
who, when asked what he did when confronted by difficult 
theological problems, replied, " I look them straight in 
the face and pass them by." 

In The Monastery Scott, in speaking of the niral super- 
stitions concerning fairies, mentions a case which came 
before him as sheriff, in which a shepherd mistook the 
figures in a Punch and Judy show for the " Good neigh- 
bors." He also refers to the old feudal rights of the 
Church in Scotland, and the obligation of tenants to have 
their corn ground at the mill of the barony, and using the 
technical phrases of intown and dry multures and thirlage 
invecta et illata, intimates that he talked not without book ; 
nor does he hesitate to quote a sentence from the De- 
cretals. 

In The Pirate, Scott refers to the trial of Gow, the 
pirate, before the Admiralty Court in 1725, where Gow 
refused to plead, thereupon the court ordered his thumbs 
to be squeezed with whip cord as a mild preparation for 
the peine fort et dure; upon which the pirate finally 
consented to bring himself within the jurisdiction of the 



28 LAW AND LAWYERS OF SIR WALTER SCOTT. 

court. Scott notices the Udallers or allodial possessors 
of the land in Zetland where the Norwegian law prevailed, 
and the scat and wattle, hawkhen, and hagelef or dues 
from the peasants to the lords. He refers to the law of 
wreck, to Flotsam and Jetsam, to the right of property 
in a stranded whale, and to Treasure trove, though all 
his statements are not entirely in agreement with the 
English law. 

In The Fortunes of Nigel, the hero is about to lose his 
estates by eviction, under an overdue Wadset, which is 
the attractive name of a Scotch mortgage. He came to 
London to ask of King James I the repayment of a large 
sum, which that monarch had borrowed of Nigel's father. 
As that wisest fool in Christendom was not such a fool 
as to pay his royal debts before he was reminded of them, 
the sympathetic aid of his banker, the celebrated George 
Heriot, was enlisted. James then pledges his jewels to 
Heriot for an immediate advance of cash to Nigel for his 
present benefit, gives him directions to negotiate a loan 
to clear Nigel's mortgage and signs his royal warrant in 
addition as security. Heriot repledges the jewels to old 
Trapbois, the usurer, for the cash and obtained from the 
Lady Hermione money to pay off the mortgage or rather 
to procure an assignment of it, for it would seem that the 
mortgagee when given the money could be reqmred to 
assign. 

Meantime, Nigel having fought with Lord Dalgarno, 
his false friend, in St. James Park, within the verge of 
the court, committed a breach of privilege — a Star 
Chamber business, he was told, which might cost him his 
right hand; so he fled to Whitefriars near the Temple, 
so called from the church of the Carmelites or Whitefriars. 
This precinct was known by the cant name of Alsatia, a 
name borrowed from the debatable land between 
France and Germany and had at this time and for 
nearly a century after, the privilege of sanctuary, unless 



LAW AND LAWYERS OF SIR WALTER SCOTT. 29 

against the writ of the Lord Chief Justice or Privy Council. 
King James I confirmed this privilege, it is said, by his 
charter in 1608. There is an interesting account of 
Alsatia in the Introduction to Inderwick's Calendar of 
the Inner Temple. 

In Nigel's flight he is assisted by Lowestoffe, a young 
Templar, chiefly distinguished by his performances on 
the French horn, so annoying to Counsellor Barratter, 
who occupied the chambers beneath. The desperadoes 
and vagabonds of Alsatia, living without the pale, had a 
semi-organized government of their own which Scott 
minutely describes. Nigel lodges with old Trapbois who 
steals the King's warrant from him, and is then murdered 
by an outlaw in an attempt to steal the King's jewels 
which Heriot had deposited with the usurer. Martha, 
Trapbois' daughter, however, escapes with and marries 
Richie Moniplies Nigel's servant, taking with her all 
Trapbois' money, the jewels and the royal warrant. Nigel 
is sent to the Tower on a charge of treason and the King 
takes this opportune time to tender Heriot the amount 
of his loan, and demand the return of the jewels. Heriot 
cannot produce them and the King, after tormenting 
him for a while, produces the jewels which had been 
returned to him by Richie Moniplies. It then turns out 
that Dalgarno had formerly deceived the Lady Hermione 
by a mock marriage, and the fraud being discovered, is 
compelled to marry her legally. This done, he claims 
title to her property including the mortgage which, how- 
ever, Richie pays off on the last day with the old miser's 
money, returns the royal warrant to the King, and pre- 
sents Nigel, on the latter's wedding day, with the title 
deeds of his estate. 

In Peveril of the Peak, the two Peverils are accused of 
complicity in the notorious Popish plot. The account of 
Julian's arrest and examination before Justice Maul- 
statute, shows in an interesting manner the terror which 



30 LAW AND LAWYERS OF SIR WALTER SCOTT. 

pervaded the community at the time. Julian is committed 
to Newgate and afterwards we find him in the Tower with 
his father ; whence they are soon taken to their trial before 
the infamous Lord Chief Justice Scroggs. Dr. Titus Gates 
was the chief witness for the Crown, and Scott's narrative 
of the trial shows that he had studied the history of the 
times and the State Trials. Fortunately for the Peverils, 
Gates was now becoming unpopular and Scroggs, by the 
private connivance of Charles II, charged in favor of 
the Peverils who were acquitted. 

Readers of Peveril will also remember the trial and 
execution of William Christian, in the Isle of Man, who 
had incurred the enmity of the Countess of Derby, the 
island belonging at that time to the Earldom; but the 
limitations of this paper do not permit more than this 
passing reference. 

Scott alludes, also, to the tenures by which real estate 
was held in Man. Scott states that the transfer of land 
was made in open court where the grantor delivered to 
the grantee a straw as evidence of title. Pollock & Mait- 
land II, 184, refer to a similar custom in some parts of 
England. Citing Coke 4 Inst. cap. 69, Scott suggests that 
"stipulation" is derived from such a traditio stipulae or 
delivery of a straw, a fanciful etymology perhaps, but 
very much older than Coke. 

In the story the Countess of Derby purchased the girl 
Fenella from her master, a rope dancer, or montebank, 
to whom she had been apprenticed, and Scott supports the 
incident by the case of Reid v. Scott of Harden, Fountain- 
hall Vol. I. p. 441, (1687), where Reid, who had bought 
a dancing girl from her mother for about twelve dollars, 
sued Scott with whom the girl had taken refuge. The 
Court quoted the law of Moses, held that there were no 
slaves in Scotland, that mothers could not sell their 
bairns and dismissed the case. Scott adds with pride 
that he was directly descended of the father of this champ- 
ion of humanity. 



LAW AND LAWYERS OF SIR WALTER SCOTT. 3 1 

The mainspring of the plot of Quentin Durward, to 
use Scott's own words, "is that which all who know the 
least of the feudal system can easily understand. The 
right of a feudal superior was in nothing more universally 
acknowledged than in his power to interfere in the 
marriage of a female vassal." In the story the young and 
beautiful Countess Isabella of Croye, a vassal of the Duke 
of Burgundy, invokes the protection of King Louis XI, 
as lord paramount. Her romantic adventures, perils and 
tribulations, and her safe and happy deHverance, through 
the bravery of Quentin, however thrilling, are many 
leagues distant from the subject of this paper. 

Readers of that entertaining story, St. Ronan's Well 
may remember the managing committee of that health 
resort ; the Man of Religion, the Man of Mirth, the Man of 
Peace, Captain MacTurk; the Man of Medicine, Dr. 
Quackleben; and the Man of Law, Saunders Meiklewham. 
The lawyer's nose projected from the front of his broad, 
vulgar face, like the style of an old sundial, twisted all 
of one side. He was on excellent terms with Dr. Quackle- 
ben, who always recommended him to make the wills of 
his patients — a prudent measure, as the Doctor's method 
was always to "give the disease its own way at first and 
then watch the turn of the tide," and he used to say that 
' ' robust health was a very alarming state as most sudden 
deaths happen to people in that condition." 

The plot of the story turns upon the will of Lord Ether- 
ington's imcle, Scrogie Mowbray, settling the estate upon 
Etherington on condition that he should, before attaining 
the age of 25, marry a young lady of the name of Mowbray, 
and by preference of the house of St. Ronan's, with limita- 
tion over. Clara Mowbray answering to this description 
was engaged to Francis Tyrrel, half brother to Lord 
Etherington, who thereupon arranged a private marriage 
ceremony in which he personated Francis. The fraud 
was almost immediately detected and Clara returned to 



32 LAW AND LAWYERS OF SIR WALTER SCOTT. 

her home. The validity of the marriage became, naturally 
a grave question, which Scott solves in rather a clumsy 
fashion, by killing off the principals instead of obtaining 
a commonplace decree of the court annulling the marriage, 
which a lawyer of his attainments might surely have done. 

The comedy parts of the novel are sustained by the 
great Meg Dods and her lawyer, Mr. Bindloose, who was 
also Sheriff Clerk. Meg consults him professionally and he 
thinks she intends to write her will which he says is the 
act of a careful and of a Christian woman. "Oh! it's an 
awful thing to die intestate if we had grace to consider 
it" — a survival of the ancient belief as to the danger to 
the soul of one dying without remembering the Church. 
But Bindloose was mistaken, for Meg came to report the 
disappearance of Francis Tyrrel and her fear that he had 
been murdered, with which theory Bindloose disagreed. 
"Be reasonable," said he, "consider that there is no 
corpus delicti" — "Corpus delicti? and what's that?" 
said Meg, "something to be paid for, nae doubt for your 
hard words a' end in that ; and what for suld I no have 
a Corpus delicti or a Habeas Corpus or ony other corpus 
that I like, sae lang as I am willing to lick and lay down 
the ready siller?" The lawyer explains that there was 
no proof that the man had been slain, and no production 
of his dead body. "And that is what we call the corpus 
delicti." "Weel then, the deil lick it out of ye," said 
Meg rising in wrath and bringing the consultation to an 
end by calling her counsellor an old fool. 

There is probably none of Scott's novels which contains 
more legal terms and allusions than Redgauntlet, and this 
is particularly interesting to the lawyer, by reason of the 
cause celebre of Peebles vs. Planestanes (Anglice Pebbles 
vs. Pavement) which supplies the comedy part of the 
story. 

Scott drew Alan Fairford from his own experience, and 
Peter Peebles " that dreadful piece of realism," says Ste- 



LAW AND LAWYERS OF SIR WALTER SCOTT. 33 

venson, was also drawn from life ; called Poor Peter because 
a suitor in forma pauperis, a wornout litigant, half crazed 
by fifteen years' experience in the Courts, with a new 
solicitor every year — he wished he had a new coat as 
regularly — broken dow^n with poverty and drink, the 
laughing stock of the Courts and yet proud of his no- 
toriety, as the best known litigant in Edinburgh. When 
asked for his occupation he said, " If I am laird of naethin 
else I am aye a dominus litis" i. e. Laird of a lawsuit. 

Now, as soon as Alan had given his "bit chack of 
dinner" and had put on his advocate's gown, old Fairford 
plunged his son into this whirlpool of a suit with the 
encouraging remark that the young advocate was like 
the young doctor, who must walk the hospitals and cure 
Lazarus of his sores before he could be admitted to pre- 
scribe for Dives when he has an indigestion. So Fairford 
coolly tells Alan that he must argue the case on appeal 
upon the Tuesday following, and overrules his objection 
that his inexperience would be fatal. "Ye cannot spoil 
it Alan," said he, "that is the very cream of the business; 
there have been ten or a dozen agents concerned and the 
case is come to that pass that Stair or Arniston could not 
mend it, and I do not think even you, Alan, could do 
it much harm." Young Domtoustie of that Ilk, had 
been appointed by the court to represent the pauper 
suitor, and was so alarmed by the prospect that he fled 
the town, so Alan is forced to take his place. The case 
was an action for an account between former partners 
with a cross action and divers complications of Scots law, 
including that mysterious process called a multiple- 
poinding which Peebles himself swore, by the Regiam 
Majestatem! was the safest remedium juris of all, as it 
might even be conjoined with a declarator of marriage. 
Scott in a note says that Multiplepoinding is equivalent 
to what is called, in England, Double Distress, which 
to the common lawyer, explains the obscure by the 



34 LAW AND LAWYERS OF SIR WALTER SCOTT. 

unknown, for double distress is itself a Scotch term for 
two competing executions. Peebles claimed there was 
not a lawyer in England that kend the nature of a multi- 
plepoinding, but this creature of the law seems almost, 
if not exactly our familiar friend, Interpleader Bill, 
disguised in Highland plaid and breeks. 

To add to Peter's glory, he had the good luck to pro- 
voke Planestones to pull his nose at the very threshold 
of the Court, and claimed this was not a mere assault, 
but constituted Hamesucken, the essence of which is to 
strike a man in his own home, for in truth the Court might 
be said to be Peter's dwelling place. 

It would be too long to tell the history of this famous 
case, how Alan at the very moment of success, hurries 
away from the court room to succor his friend Latimer, 
how the case is remitted to an accountant to report, and 
how the angry Peebles serves both the Fairfords, as 
solicitor and advocate, with a complaint for malversation 
in office. He pursues Alan over Scotland and into Eng- 
land, demanding a "fugie warrant" of arrest to bring 
him back. When Justice Foxley asks him if he will take 
oath that Alan was a runaway apprentice: "Sir," said 
Peter, " I will make oath of anything in reason, when a 
case comes to my oath, it is a won cause. All's fair when 
it comes to an oath ad litem." But the whole book is 
flavored with the case, and it must be read as a whole to 
be appreciated. 

We must pass over, with a mere reference, other pas- 
sages in Redgauntlet, written as only a lawyer could write 
them; such as the law relative to the salmon fishing 
with nets in the Solway, as practiced by Geddes the 
Quaker, and the application of the law of riot to those 
who forcibly destroyed them; the differences between 
the laws of Scotland and England, by which it resulted 
that Darsie Latimer (or Redgauntlet) while safe in Scot- 



LAW AND LAWYERS OF SIR WALTER SCOTT. 35 

land, was subject in England, where he had property, 
to his uncle, and guardian, Hugh Redgauntlet; the hear- 
ing of Latimer before Sqmre Foxley, who complained that 
he was expected to carry the whole law of England in his 
head and a posse comitatus to execute it in his pocket; 
the smuggling cases to which Scott alludes, as coming 
before his court in Selkirkshire ; and finally the tradition 
that at the coronation of George III, the solemn challenge 
of Dymock the hereditary champion, who flung down 
his gauntlet as the gage of battle, was accepted by an 
unknown woman, whom Scott for the sake of the story 
identifies as Lilias Redgauntlet, the romantic Green 
Mantle of the story — all these things and many more, 
maybe read in this interesting novel, as reference being 
thereunto had may more fully and at large appear. 

The story of The Betrothed was suggested to Scott by 
the poem of the Noble Moringer, which he had translated 
from the German many years before, and this was founded 
upon that wholesome rule of the law that no man 
shovdd stay away from home for seven years, without 
writing a letter to his wife to let her know that he is still 
in esse. For if, after seven years' absence, he casually 
turns up at the old homestead, he must not be surprised 
if he finds that his domestic affairs are not exactly as he 
left them. The Noble Moringer leaves his lady to go 
on pilgrimage and pledges her to wait for his return seven 
years with a day added for good measure. The time 
fairly flew; the Moringer never thought of writing home, 
and the last day came when the Moringer is warned in a 
dream of what is going on at home, and when he wakes, 
he finds himself by the kindly aid of St Thomas, con- 
veniently near his own castle. In pilgrim garb and 
unrecognized, he joins in the wedding festivities and drops 
his wedding ring in his wife's cup. 



36 LAW AND LAWYERS OF SIR WALTER SCOTT. 

The ring hath caught the Lady's eye, she views it close and near, 
Then might you hear her shriek aloud, "The Moringer is here!" 
Then might you see her start from seat, while tears in torrent fell. 
But whether 'twas for joy or woe, the ladies best can tell. 
"Yes, here I claim the praise" she said, "to constant matrons due, 
Who keep the troth that they have plight, so steadfastly and true; 
For count the term howe'er you will, so that you count aright. 
Seven twelvemonths and a day are out when bells toll twelve to-night." 

The Bigamy act of 1 Jac. I, c xi, excepted from its 
penalties those who married a second time when the 
first husband (or -wife) had been beyond seas for seven 
years — and Tennyson should have referred to this in his 
poem of "Enoch Arden," where Mrs. Arden waits over 
ten years for Enoch to come back. Very likely neither 
Mrs. Arden or Tennyson, himself, knew the law on the 
subject. Poets should always study law, as Scott did, 
but if more of them did so, there would be less poetry 
written. 

The Supreme Court of Pennsylvania, in the very 
recent case of McCausland's estate, 213 Penna. 189, has 
applied this rule of seven years' absence in an ingenious 
manner, w'orthy of observation. 

The Act of June 24, 1885, P. L. 155, has gone further. 
A seven years' wanderer is liable on his return not merely 
to find his wife married again, but his estate administered 
as though he were dead. It has been said that this Act 
went further. For whatever views may be entertained 
as to the sanctity of the marriage bond all persons are 
singularly unanimous in maintaining their rights of 
property. Naturally the operation of this statute rnet 
with opposition. In the celebrated case of Cunnius v. 
Reading School District, 21 Pa. Sup. Court 340; 206 
Penna. 469; 198 U. S. 458; its constitutionality was 
tested in all the judicial laboratories and came out pure 
gold. 

It has been often stated that this rule of the presumption 
of death from seven years' absence, is of common law 



LAW AND LAWYERS OF SIR WALTER SCOTT. 37 

origin. Such is or was the general impression, but see 
notable matter hereof in the exposition of Professor 
Thayer in his classical work on Evidence, whereof, as 
Lord Coke would say, you may disport yourselves for a 
time. He concludes that while death has always been 
inferred from long absence, the establishment of the seven 
year period has been quite modern. 

In the short story of The Two Drovers, Scott gives us 
a tragedy from life. Robin having in a fit of vengeful 
passion, killed his friend, Harry Wakefield, was tried for 
his murder, and Scott, who happened to be present at 
the trial, which took place in Carlisle, made a very power- 
ful story of it. He narrates in particular, the Judge's 
charge, dwelling on the fact that two hours elapsed be- 
tween the injury received by the prisoner and his fatal 
retaliation, thus showing the prisoner's deliberate intent. 
The Highlander condemned to death, acknowledged the 
justice of his sentence, expressing, with unconscious 
rhythm the old Lex Talionis — " I give a life for the life 
I took and what can I do more? " 

In The Talisman Scott refers to the Assize of Jerusalem, 
that compendium of feudal law compiled for the govern- 
ment of the Kingdom of Palestine when conquered from 
the Saracens. As an instance of the attachment of the 
Prankish invaders to their feudal customs it is also said 
that Richard I tried to import the Forest laws into 
Palestine. 

Readers of the novel will remember that Conrade of 
Montserrat stole from its place the banner of England and 
was detected by the sagacity of Roswal the hound. 
Richard thereupon charged Montserrat with the offence. 
"Murders and robbers have been convicted," said he 
to the King of France, "and suffered death under such 
evidence, and men have said that the finger of God was in 
it. In thine own land, royal brother, and upon such an 
occasion, the matter was tried by a solemn duel betwixt 



38 LAW AND LAWYERS OF SIR WALTER SCOTT. 

the dog and the man, as appellant and defendant, in a 
challenge of murder. The dog was victorious, the man 
was punished, and the crime was confessed." Scott 
probably referred to the celebrated case of the Dog of 
Montargis; but this incident is supposed to have taken 
place about 1 37 1 , so that a reference to it by King Richard 
is a clear anachronism, though excusable enough in the 
circumstances. Scott describes in detail, as he loved to 
do, the judicial combat which ensued between Sir Ken- 
neth, as champion of King Richard, and Conrade of 
Montserrat, who is defeated and confesses his treason. 
The dramatic crisis of the Fair Maid of Perth is the 
ordeal of Bier right for the detection of the murderer of 
Oliver Proudfute. This ancient method of trial was 
founded on the belief that at the touch or even approach 
of the murderer, the body of his victim would bleed 
afresh. Scott refers to it in his ballad of Earl Richard: 

"The maiden touched that clay cauld corpse 

A drap it never bled, 
The ladye laid her hand on him 

And soon the ground was red." 

This sort of evidence seems to have been recognized 
in Scottish jurisprudence, at least in the Auchindrane 
case, on which Scott founded his dramatic poem of 
Auchindrane, the corpse bled at the approach of the 
murderer's innocent daughter, and the phenomenon 
naturally attracted attention. As late as 1688 in the 
High Court of Justiciary at Edinburgh in the Stands- 
field case, Philip Standsfield, suspected of having murdered 
his father, touched the body, when the blood instantly 
gushed forth, which circumstance was included in the 
libel or indictment against him. The case is quite fully re- 
ported in 1 1 State Trials 1371 and there are some remarks 
concerning it in Scott's Chronological notes of Scottish 
affairs from the Diary of Lord Fountainhall. Henry C. 
Lea examines the subject learnedly in "Superstition and 



LAW AND LAWYERS OF SIR WALTER SCOTT. 39 

Force" and even states that in Pennsylvania in 1833, 
evidence of this kind was allowed to go to the jury. 
The writer remembers that according to the newspaper 
reports of a murder a few years ago in New Jersey, the 
relatives of the deceased made an attempt to have a 
suspected prisoner touch the body, and Mr. Lea refers 
to some similar cases. Scott makes a very skillful use of 
this superstition in the Fair Maid, and his description 
of the ordeal in the Church of St. John is well done. 
Magdalen Proudfute, the wife of the murdered man, 
appeals Sir John Ramorny for the murder of her husband 
by him or one of his household. One by one they pass 
by the bier and make the sign of the cross on the dead 
man's breast. When it comes to the turn of Bonthron, 
the real murderer, he declines the ordeal, and demands 
as he had a right, the judicial combat, which is accepted 
by Smith, the widow's champion. The combat is minutely 
described, and Smith defeats Bonthron, who is condemned 
to be hung. 

Scott utilizes in his story the feud between two power- 
ful clans who, animated by the pcrfervidum ingemum. 
Scotorum, seemed bent on mutual extermination. It 
was finally agreed to terminate the quarrel in a quasi- 
judicial manner by a battle between thirty champions 
on each side, which was actually fought in 1396, before 
King Robert III, and the whole court of Scotland, and to 
give greater eclat to the performance, it was reserved for 
Palm Sunday. They were lusty champions, true to their 
word, especially when they threatened revenge. Simon 
Glover remarked of the Highland chief Gilchrist — " saving 
that he is hasty in homicide, I have nowhere seen a man 
who walketh a more just and upright path." This combat 
between the clans Chattan and Kay, is examined at 
length by George Neilson in his Trial by Combat. 

Scott also alludes to the power of the magistrates of 
Perth to execute, without trial, a person taken red- 



40 LAW AND LAWYERS OF SIR WALTER SCOTT. 

handed, according to what was called Jedwood justice — 
"hang in haste and try at leisure," something like the 
more peaceful maxim of our day, "Vote first and discuss 
it afterwards." After this fashion. Earl Douglass hangs 
the murderers of the Prince, and then takes the verdict 
of guilty from his jury of Jedwood men. 

Scott, in his introduction to the Border Minstrelsy, 
speaks also of Lydford law, a similar custom in Devon- 
shire : — 

"I oft have heard of Lydford Law, 
How in the mom they hang and draw, 

And sit in judgment after." 

So that the Lynch law of our own country has a very 
ancient and respectable pedigree. 

The scene of Anne of Geierstein, is laid in Switzerland 
and France, in the latter part of the fifteenth century, 
and Scott utilizes for the framework of his story, the 
Vehmic tribunals, which originated in Westphalia and 
exercised such a mysterious and potent influence. This 
secret and oath-bound court assumed criminal jurisdiction 
of the widest range. Thieves and murderers caught in 
the act were executed without trial and without delay 
by Judge Lynch's cousin German. Other offenders, 
including those who committed any act alleged to offend 
against honor or religion, or even dared to defy the 
authority of the Holy Vehme, were arrested, subjected 
to rigorous and inquisitorial examination, tried and if 
found guilty, executed by a tribunal, the very members 
of which were often unknown to one another. In his 
Introduction, Scott quotes from Palgrave's English 
Commonwealth an account of the origin and method of 
this peculiar court which is stated to be a survival from 
pagan times, and connected with the ancient Saxon 
religion. The subject had long interested Scott. He made 
it the subject of his dramas. The House of Aspen and 
Goetz of Berlichingen which he had translated from Goethe 



LAW AND LAWYERS OF SIR WALTER SCOTT. 4 1 

m 1799, and thirty years after, he returned to it in Anne 
of Geierstein. Andrew D. White in his recent auto- 
biography says that he was incited to the study of history 
by reading Quentin Durward and Anne of Geierstein. 

In The Surgeon's Daughter Scott introduces Mr. Law- 
ford, the town clerk, a man of sense and humanity, as 
well as law. Mr. Gray, the surgeon, calls for his aid when 
the Jewess, Lilia, is about to be arrested for treason. 
Despite her illness and danger of death, Mr. Lawford 
admits that the warrant must be executed, "for these 
evils," he says, "are only contingent, not direct and 
immediate consequences." He plumes himself not a 
little on his knowledge of law and of the world, thanked 
the Lord that they had nothing to do with English 
practice on this side of the Border, and speaks a word in 
favor of the Jews — "They are well attached to Govern- 
ment; they hate the Pope, the Devil and the Pretender 
as much as any honest man among ourselves." To 
which the Surgeon replied that he could not admire 
either of those three gentlemen. 

In conclusion, the object of this paper has been to 
show how Scott's legal learning and training influenced 
his writings; perhaps this object has been accomplished, 
although of necessity much has been omitted for want of 
space, as any student of Scott's writings may readily 
perceive. It is difficult to keep the straight path of our 
subject, while reading those brilliant novels, so stirring 
in narrative, so humorous in dialogue, so interesting in 
historical allusions, so absorbing in their plots. They 
swarm with life. What characters has Scott created! 
Caleb Balderston, Jonathan Oldbuck, Peter Peebles, 
Nicol Jarvie, Dugald Dalgetty, Meg Merrilies, Jeanie 
Deans, Meg Dods, Diana Vernon, and Rebecca — the 
female faction is well represented — and there are many 
more. By the Regiam Majestatem! these are real 
people, they are living now, and will live forever. To 



42 LAW AND LAWYERS OF SIR WALTER SCOTT. 

read Scott is almost enough to make any man willing to 
be a Scotchman, quite enough to thrill those of us in whose 
veins runs Scottish blood, and much more than enough 
to make all of us lawyers feel proud that this Scott was a 
lawyer. What a wonderful world does this Wizard of the 
North show us as we gaze into his magic drop of ink! 
Princes and peasants; cavaliers and covenanters, priests 
and puritans, lords and ladies gay, monks and maidens 
on their palfreys white, the moated castles and the dun- 
geons deep, the knights of long ago with "many a crest 
that is famous in story," and heralds "red and blue and 
green with all their trumpery." And as the vision fades 
we can almost hear the soft Scotch melodies, now merry, 
now movirnful, echoing from the Northern hills, while 
the poet sings: — 

"Harp of the North, farewell! The hills grow dark, 

On purple peaks a deeper shade descending; 
In twilight copse the glow-worm lights her spark, 

The deer, half seen, are to the covert wending. 
Hark! as my lingering footsteps slow retire, 

Some spirit of the Air has waked thy string! 
'Tis now a seraph bold, with touch of fire, 

'Tis now the brush of Fairy's frolic wing. 
Receding now, the dying numbers ring. 

Fainter and fainter down the rugged dell. 
And now the mountain breezes scarcely bring 

A wandering watch note of the distant spell — 
And now, 'tis silent all! Enchantress, fare thee well! 

John Marshall Gest. 



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